Something’s missing from Scalia’s story

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Justice Antonin Scalia took the opportunity to emphasize the genius of the Framer’s structural design in his Constitution Day talk at George Washington University on Monday, co-sponsored by the Constitutional Sources Project. Saying “structure is destiny,” Scalia explained that without a properly balanced republican government that is responsive to the needs of the people, the rights and liberties we hold dear from the Bill of Rights would be nothing more than parchment guarantees.

On that point we certainly agree. But as I sat in the audience in GW’s Lisner Auditorium, I was surprised that Justice Scalia left out an essential part of the story about why our Constitution’s Framers established our federal government system: the Articles of Confederation.

As a history refresher, the Articles of Confederation, adopted by the Second Continental Congress in 1777 and ratified in 1781, established a confederacy built merely on a “firm league of friendship” between thirteen independent states. There was only a single branch of national government, the Congress, which was made up of state delegations. Congress under the Articles of Confederation had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or enact legislation that directly affected citizens; it could raise money only by making requests to the states. This created such an ineffectual central government that, according to George Washington, it nearly cost Americans victory in the Revolutionary War.

By the time our nation’s Founders took up the task of drafting the Constitution in 1787, they had lived under the dysfunctional Articles for a decade and were focused on creating a new, better form of government with a sufficiently strong federal power. In considering how to grant such power to the national government, the delegates adopted Resolution VI, which declared that Congress should have authority “to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual legislation.” The principle of Resolution VI was translated into constitutional provisions—specifically, the powers granted to Congress in Article I of the Constitution—affording the federal government the ability to provide national solutions to national problems.

Of course, conservatives like Justice Scalia might not like this part of our constitutional story so much, because it helps to refute the claim that the Constitution is a document that is primarily about limiting government. The historical context shows that the Founders were just as, if not more, concerned with creating an empowered, effective national government than with setting stark limits on federal power. When we think about the preamble to the Constitution, which declares that “We the People” have ordained and established the Constitution in order to create a “more perfect Union,” it is important to remember that the Framers sought to create a system of government more perfect than the British tyranny against which they revolted and more perfect than the dysfunctional Articles of Confederation under which they had floundered as a fledgling nation.

In the early days of the American Republic, the young nation faced a multitude of difficulties—a woefully underfunded army and navy, uncertain day-to-day funding of the federal government, and disagreements among the States on everything from debt to commerce to meeting treaty obligations. Unfortunately, the nation, then bound by the Articles of Confederation and its ineffectual model of central government, also lacked a national government with sufficient power to address these challenges, which transcended state lines and implicated a national interest the federal government was not yet empowered to protect. Today, our nation faces new problems that spill across state lines and affect the public interest of the country as a whole, including the country’s health care crisis, which the Court addressed in the Obamacare case, and the scourge of air pollution, which the Court will consider this coming Term in the EPA v. EME Homer City Generation case. Fortunately, our enduring Constitution conveys ample federal power to address these problems.

Let’s hope that Justice Scalia was just editing for time in his speech today when he left out the history of the Articles of Confederation and our Founders’ desire to remedy the Articles’ failings by creating an appropriately strong federal government. After all, he exhorted the audience not to fall prey to the attractions of a theory of constitutional interpretation that oh-so-conveniently results in the Constitution meaning exactly what your political or moral agenda would like it to mean. If you, like Justice Scalia, profess fidelity to the text and history of the Constitution, your story of the original understanding of our constitutional system of government must include a healthy appreciation for the fact that the Framers sought to create a government strong enough to meet the challenges of governing a nation.

Elizabeth R. Wydra is the Constitutional Accountability Center’s Chief Counsel. Elizabeth frequently participates in Supreme Court litigation and has argued several important cases in the federal courts of appeals.

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